FOIA Lawsuits Increase During Obama Administration

by FOIA Project Staff on December 20th, 2012

Syracuse, NY — A new study by the Transactional Records Access Clearinghouse (TRAC) has found that there were more court complaints asking federal judges to force the government to abide by the Freedom of Information Act (FOIA) during the first term of the Obama Administration than there were in the last term of President Bush.

While this administration-to-administration increase — documented in court records for the entire FY 2005 to FY 2012 period — was relatively small at 6 percent, a comparison of the FOIA filings in the last two years of Mr. Bush’s second term and the last two years of Mr. Obama’s first term showed a far more pronounced jump of 28 percent — from 562 to 720 (see Figure 1).

Figure 1. FOIA Lawsuits Filed: Bush vs. Obama Administrations

(Note: because of the natural lags in the filing of all FOIA court cases and difficulties in identifying activities that occur in the year when one administration overlaps another, comparing the events of the two-year periods at the end of the two terms may be more meaningful.)

Partly because President Obama has, since his first few days in office, made sweeping promises about his administration’s support for open government, the somewhat surprising increase in FOIA filings — especially in the last two years — adds credence to the criticism of some activists about the Obama Administration’s actual commitment to this goal. An earlier report on FOIAproject.org found that four years into his administration, and after issuing general guidelines, Attorney General Eric Holder had done little of a concrete nature to implement many of those same guidelines, and that the Justice Department continues to defend whatever information the agencies choose to withhold from the public.

While the evidence about the surge in FOIA complaints in the last two years of Mr. Obama’s first term is very clear, a number of experienced litigators in the area believe that extensive case-by-case analysis will be required before the full reasons for the dramatic change can be documented. “I think more digging into the individual complaints will be required,” said Scott Hodes, an experienced FOIA litigator with previous experience in the Justice Department, adding “were more cases filed because of backlog delays or were they due to withholding?” Mr. Hodes, after noting that funds for FOIA processing operations have been cut deeply in recent years, speculated that perhaps “more people just got tired of waiting.”

As of a deadline of noon today, the Department of Justice had not replied to an inquiry about the increase. TRAC sent the inquiry on December 11 to Melanie Ann Pustay, Director of the Department’s Office of Information Policy.

New Information on FOIA Lawsuits

Detailed information about the growing number of FOIA suits in the last two years — and which federal departments had the worst and best records — are available on a new user app that was just added to FOIAproject.org. Both the underlying case-by-case data and the website where the information can be viewed were developed by the Transactional Records Access Clearinghouse (TRAC) with support from the CS Fund/Warsh-Mott Legacy, the Ethics and Excellence in Journalism Foundation, the William B. Wiener Jr. Foundation, and Syracuse University.

FOIAproject.org offers both very focused information about every case brought to the courts as well as a wide range of different long-term statistical trends. Over the years, how have FOIA filings, closings and pending matters changed? How do departments and the agencies within them compare by these various measures?

Thanks to the advanced new search mechanisms developed by TRAC for FOIAproject.org, case records about any particular matter can now be located by the name of the attorney, the name of the defendant (department, agency, etc.), the district, or the judge. Detailed case information includes complaints, dockets, and opinions.

When Are Lawsuits Necessary?

The basic far-reaching principle of the FOIA is that federal documents should be available to the public. This principle is considered central to the democratic process. But under this 46-year old law there are areas where certain records can be properly withheld. The FOIA process begins at the administrative level in many hundreds of executive branch agencies. Officials there decide whether to release or withhold requested records. If denied access, requestors can appeal to a second level of administrative officials. The final remedy provided under the law for improper withholding is then court action. Only a relatively small number of requestors decide to appeal their denials to federal court. There they allege that the particular agency in question is violating the law and request the court to order compliance. The decisions rendered in these cases often have broader impact.

Who’s Bringing the Suits?

TRAC currently is examining the information about the attorneys who are filing these suits. Preliminary data suggest that nearly 2,000 attorneys represented plaintiffs in FOIA cases that were active during the period from October 1, 2004 to the present.

The data indicate that for an overwhelming proportion of attorneys, activity under this law was limited to a single case. But at the other end of the scale were several dozen who handled ten or more cases. Among the most active were attorneys associated with Judicial Watch, a conservative group and liberal groups such as the American Civil Liberties Union and its local affiliates. Also very active were attorneys for Public Citizen Litigation Group, Citizens for Responsibility and Ethics in Washington, and attorney David Sobel.

How Do the Agencies Compare?

There are wide variations in both the raw number of FOIA complaints that have been filed against various departments and those that have experienced the most growth or decline in the filings when the last two years in the Bush Administration are compared with the last two years under President Bush.

The organization showing the highest growth rate was the State Department. Here the suits more than doubled in the comparison periods, jumping from 18 cases to 38. The next highest growth rate (67 percent) — was in the Agriculture Department that went from 12 to 20 cases. The next two agencies — the Department of Veterans Affairs and the Environmental Protection Agency — had a 60 percent increase. For both, the number of suits went from 10 to 16. Others in the top ten are shown in Table 1.

Table 1. Organizations with the Highest Growth Rates

Organization

Number of Suits

Percent
Increase**

Rank

Bush*

Obama*

Department of State

18

38

111%

1

U.S. Department of Agriculture

12

20

67%

2

Department of Veterans Affairs

10

16

60%

3

Environmental Protection Agency

10

16

60%

4

Department of Justice

141

211

50%

5

Social Security Administration

11

16

45%

6

Department of Health and Human Services

29

42

45%

7

Central Intelligence Agency

21

30

43%

8

Department of Defense

65

79

22%

9

Department of Homeland Security

81

93

15%

10

* Compares last two years of each administration: Obama (FY 2011 – FY 2012), Bush (FY 2007 – FY 2008).
** Required at least 10 suits to be included in the percentage rankings

Table 2 lists the departments that experienced the largest increase in the number of lawsuits filed against them. The Department of Justice and the Department of State led the list with the largest increases in the number of lawsuits filed. (Within the Department of Justice, interestingly the number of lawsuits filed against the Bureau of Prisons bucked departmental trends and actually fell.)

Among the bigger departments with the largest decreases in their FOIA suits were the US Postal Service (-57 percent), the Department of Transportation (-56 percent), the Department of the Treasury (-22 percent), the Department of the Interior (-19 percent) and the U.S. Labor Department (-13 percent). Others in the top ten for their decline in FOIA lawsuits are shown in Table 3, with the largest decreases in the number of lawsuits show in Table 4.